Copyright and Moral Rights Enforcement

I am a victim of copyright infringement.

I volunteered to create a pen-and-ink holiday card design for a non-profit organization. The year after we’d sent out the cards, I received two other organization newsletters containing a reproduction of my drawing. Neither had asked permission, even though my name was readily apparent in the corner of the image.

Was there anything I could do about it? The answer is a resounding, Yes! With a caveat: if by ‘doing something,’ you are thinking someone is going to be compelled to pay a large sum of money, think again. Lawyers often say it’s ‘not worth it’ for most artists to pursue copyright enforcement. That’s because lawyers are thinking in terms of dollars from a lawsuit, and copyright lawsuits are expensive and often lead to small monetary returns, if any.

But asserting your copyright by notifying the person infringing on it and requesting – demanding – that the infringement stop can often solve the problem without need for a lawsuit. By doing this, you will often educate the infringer about the importance of artists’ copyright, which may mean they’ll think twice about doing it again. In my case, I promptly called the staff picture-rustlers at the two nonprofit organizations who had lifted my image. They were aghast, apologized profusely, and realized that they’d never thought about copyright before. I know that they’ll not only remember to secure permission for images in the future, but they’ll spread the word to other newsletter writers they network with – and the value of art, and the security of copyright, will grow as a result.

Under U.S. law, and the laws of most other countries, it is ‘illegal’ for anyone to violate copyrights. But only some violations of copyright are a ‘crime.’ This can be confusing – many people think anything ‘illegal’ is a ‘crime,’ but this is not the case. Many laws, particularly those regarding agencies, such as environmental regulation or immigration procedures, set out a law that should be followed. But not all environmental pollution or immigration violations (such as overstaying the expiration date of a temporary visa) are ‘crimes’; many are ‘civil violations.’ As with copyright violations, a ‘bigger’ intentional breach of the law must occur before something is considered a crime.

To constitute a crime, copyright infringement must be “for purposes of commercial advantage or private financial gain” (meaning that use of an image in a nonprofit newsletter, or on a personal webpage, would violate copyright law, but not be crime), or involve reproduction of a copyrighted work with a total retail value of $1000 or more within a 180-day period. For visual art, this means $1000 worth of posters or notecards, or one carefully reproduced ‘fake’ that sells for more than $1000, within 6 months time, would constitute a crime.

Prosecutors don’t charge every person who commits a criminal copyright violation. Prosecutors don’t charge every person who smokes a joint, even though drug possession is a crime. Law enforcement officers and prosecutors exercise discretion in choosing the copyright cases they prosecute. A glance through recent federal copyright prosecutions indicates that large-scale pirating of CDs and DVDs gets the most prosecutorial attention. Music and movie pirating is big-money business which prosecutors are intent on stopping; and part of the reason they are intent is that music and movie producers and distributors are insisting that prosecutors look after their interests. As more visual and fine arts creators assert their copyrights, more prosecutors will realize the economic contribution of fine art to society, and more image-theft cases will be taken seriously.

For moral rights violations and copyright violations which either don’t meet the criminal threshold, or do meet the criminal threshold but which a prosecutor declines to pursue, the artist can enforce the law by filing a civil lawsuit. The work must be registered with the copyright office before the copyright owner can bring suit. For moral rights violations, prior registration is not necessary; however, registration can help prove the case as well as to increase the likelihood of payment of damages. In addition to copyright office registration, any other venue by which the artist has provided public notice of the copyright can only help improve their odds in a lawsuit. Listing an artwork on an accessible archive like Fine Art Registry puts an artist in a much better position in proving copyright and moral rights violations.

Filing a federal lawsuit will cost at least $250 to $1000 in out-of-pocket expenses to get started, and that’s not including initial attorneys’ fees. Courts charge a filing fee to open the case, and then the parties you are suing must be served notice of the suit either by certified mail or by paying a process server. Because there is usually little chance of getting a large punitive damages award (such as there might be in a personal physical injury suit), it is not likely that you will find an attorney willing to take a copyright case on contingent fee (that is, for a percentage of the award). You can expect to pay a copyright attorney an hourly rate, which may well be many hundreds of dollars an hour, and to have to provide several hours payment in advance of work as a retainer. However, if you prevail in your suit, there is a good chance that you might get the court to award you back your costs and attorneys fees, even if you don’t get other monetary damages.

Monetary damages are based on the copyright owner’s actual damages, together with any additional profits made by the violator, which are shown by the profits which the infringer made off the use of the copyright holders image. In the case of pirated CDs and DVDs, this can be shown either by the money the pirate made from sales, or the profit that the copyright holder would have made selling the same number of CDs and DVDs at retail rates.

In the case of the use of an image of visual art, however, the copyright infringer’s profit or the holder’s loss may be difficult to prove. I would be hard pressed to establish any particular market value of my pen and ink or watercolor drawings, since I generally give them to friends and family as gifts or donate their use to nonprofit organizations. If the copyright thief made posters out of one of my hot-chile-pepper paintings, I could sue to receive back the profit them made from selling objects with my copyrighted image on them. But where a nonprofit organization used my image in a newsletter, there really is no resulting profit.

Artists can opt instead to request statutory damages, in an amount the court ‘considers just’ between $750 and $30,000 for each work. If the copyright owner can prove the infringer acted ‘wilfully’ – that is, that he or she knew that the image was copyrighted and deliberately made use of it anyway – the award can be increased up to $150,000. (Think of the difference Fine Art Registry listing can make on this point!) On the other hand, where the infringer proves that he or she “was not aware and had no reason to believe that his or her act constituted and infringement of copyright” the court can reduce the damages to $200. In certain cases, like in a suit against a library, archive or educational institution employee who thought in good faith that he or she was acting properly in accordance with fair use, statutory damages can be reduced to zero.

A 1995 Copyright Office study determined that enforcement of moral rights is minimal, in part because very few artists are aware of their legal rights, and in part because the vast majority of art transactions, outside of contracts for large public art projects, are oral. To enforce your moral and copy rights:

1. First, make sure you know and understand your rights. Articles here on the Fine Art Registry website, as well as information on the U.S. Copyright Office site, are a great place to start.
2. Notify the public of your rights. Register your works with the U.S. Copyright Office, and with Fine Art Registry. Your Fine Art Registry tag on your artwork pieces, and watermark on all digital and film images of your work, should serve as obvious notice of copyright ownership. You should also put your arts contracts in writing, at the least including on your receipt or certificate of authenticity a notice that you are retaining moral and copy rights.
3. Monitor your rights. Run search-engine searches for your name and images frequently to help ensure your work has not been ‘lifted’ without your permission.
4. If your rights are violated – assert your rights. Promptly send the infringer notice that they have violated your copyright and demand that they stop immediately.
5. If the situation warrants it, notify prosecutors. The more prosecutors hear about image thefts, the more seriously they’ll take the matter.
6. Talk to a lawyer about bringing a civil lawsuit. You will not know whether a lawsuit will be practical until you review the facts with a lawyer. Just be sure to ask what they charge for a consultation fee – and bring your Fine Art Registry records with you to demonstrate the strength of your copyright claim.

  — Cindy Ellen Hill, Esq.

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